GAO: Pentagon Broke Law in Bergdahl Case

The Defense Department violated the law when it didn’t tell Congress before transferring five Taliban detainees from Guantánamo Bay, Cuba, to Qatar in return for the Taliban’s release of captured Army Sgt. Bowe Bergdahl, the Government Accountability Office said in a legal decision made public Thursday.

Pentagon officials “did not notify the relevant congressional committees at least 30 days in advance of the transfer,” as required by law, GAO General Counsel Susan A. Poling said in a letter to nine Republican senators who had sought the analysis.

What’s more, Poling said, “because DOD used appropriated funds to carry out the transfer when no money was available for that purpose, DOD violated the Antideficiency Act,” which “prohibits federal agencies from incurring obligations exceeding an amount available in an appropriation.”

The GAO ruling provides legal backing for the position that the administration flouted the notification requirement — a view held by most Republicans and more than a few Democrats. The GAO does not address other issues that many lawmakers have raised about the merits of the exchange.

The requirement for a 30-day notice of transfers is part of the fiscal 2014 defense authorization law ( PL 113-66 ). Moreover, the fiscal 2014 Defense appropriations act ( PL 113-76 ) prohibits spending on any transfers that do not comply with the authorization law’s requirements.

Defense Department lawyers told the GAO that they believe the transfers were lawful regardless of the notification requirement, but Poling said the GAO did not accept that argument.

Pentagon officials also told the GAO that the notification requirement is unconstitutional. They argued that it “would have interfered with the Executive’s performance of two related functions that the Constitution assigns to the President: protecting the lives of Americans abroad and protecting U.S. service members.”

The GAO did not assess the validity of that claim.

The GAO letter was addressed to Republicans Mitch McConnell of Kentucky, Richard C. Shelby of Alabama, Thad Cochran of Mississippi, Dan Coats of Indiana, Lindsey Graham of South Carolina, Lamar Alexander of Tennessee, Susan Collins of Maine, Lisa Murkowski of Alaska and Roy Blunt of Missouri.